In this digital age, where you can pay with your phone and cars can drive themselves, it is easy to feel like you have to keep pace with modern technology or risk being left behind.
At one end of the spectrum, while you may have heard of bitcoin, cryptocurrency, and NFTs, you may not know exactly what these assets are. On the other, you may own these types of assets yourself and be keen to understand how they are transferred, or taxed.
Understanding digital assets like these is becoming an increasingly important part of effective estate planning.
How do I know that I own my digital assets?
That can be a difficult question, because the legal treatment of digital assets in Scotland has not always been clear.
Prior to the passing of The Digital Assets (Scotland) Bill (“the Bill”), there were concerns that digital assets did not always neatly fall within the classification of types of property recognised in Scots law. This uncertainty brought into question whether they were capable of being owned at all and, if something cannot be owned, then it cannot be transferred or inherited. This possibility did not seem to prevent the assets from being taxed, however!
In practice, where there is financial value in digital assets, the relationship which a user has with the app, platform or crypto exchange through which the assets were purchased usually enables that value to be realised. However, this only gave you as the “owner” personal rights against the provider, rather than real rights in the assets themselves. This created problems on death or if the provider ran into financial or regulatory difficulties.
How will the Digital Assets (Scotland) Bill help?
The Bill was intended to clarify the classification and treatment of digital assets in Scotland. Introduced to the Scottish Parliament on 30 September 2025, the Bill was passed on 5 March of this year and awaits Royal Assent.
The Bill makes it clear that digital assets are property and can be owned and transferred. It is hoped that this should give those who own such assets peace of mind that their assets can be passed to their beneficiaries.
As with non-digital assets, careful consideration of how that is achieved within your will is still needed, but the Bill also opens the door to undertaking lifetime planning with such assets, conceivably by transferring them to trust for example. We will only know exactly how that might work in practice in the fullness of time.
There is also, more generally, a recognition that clarifying these issues is important to make Scotland more attractive to investors and fintech companies, and to reflect Scotland’s position as an innovative and forward-thinking jurisdiction.
What might the future hold?
As time passes, it is likely we will see further legislation around digital assets. Given the pace of technological developments, it is conceivable that further, currently unknown, challenges may arise, and legislators will have to respond to those challenges.
It is also worth mentioning that, while the Bill is undoubtedly a positive step, there are still gaps, including the lack of rules on territorial scope, jurisdictional challenges, and a lack of guidance for executors in navigating their interactions with digital asset providers.
In the meantime, as the ownership of digital assets such as bitcoin and other cryptocurrencies becomes more mainstream, it is vital that owners are able to protect their digital assets with confidence going forward. The Digital Assets (Scotland) Act 2026 will be a significant and welcome step towards that.
For more information on how to protect your digital assets in your estate planning, please get in touch with one of our wills and estate planning lawyers.
Contributor
Solicitor
